A win for Dog Breeders and Dog Rescues alike!!!

Breeder, Off spring and rescued animals ARE considered livestock and I believe can stake a claim as cherished pets if they they are kept in a kennel and used to produce your livelihood…Only the family dog who is not bred or not used to produce an income would fall outside that status quo…Decision September, 2009, Federal Court decision that is overlooked all too often and a very important decision of the federal court if invaded by ‘animal cops’…

N. Idaho kennel owners win legal fight with forest
The Associated Press • Published September 15, 2009

………………..
LEWISTON, Idaho – A federal judge has ruled there are circumstances when dogs can be defined as livestock, a decision that clears the way for a northern Idaho kennel business to continue operating on land where federal Wild and Scenic River rules apply.

The ruling by U.S. District Judge Edward Lodge is a victory for Ron and Mary Park, owners of Wild River Kennels, and a legal blow to the U.S. Forest Service. It also ends, for now, a 10-year-old legal dispute for the kennel, which is built along the Clearwater River near Kooskia.

The kennel property is along private land subject to an easement under the federal Wild and Scenic Rivers Act. While the easement allows for livestock farming, the forest service claimed dogs and commercial kennels didn’t qualify and that the business should not be allowed to operate.

Lodge initially agreed with the government, and in 2005 issued a ruling that concluded that dogs, even under broad definitions, could not be deemed livestock.

The 9th U.S. Circuit Court of Appeals concluded Lodge got it wrong and sent the case back. While the justices acknowledged the uncertainty of classifying dogs as livestock, they said wording in the easement defining livestock was too ambiguous.
.. ..

Lodge changed course in his latest ruling, filed recently in U.S. District Court in Coeur d’Alene, and attempts to set parameters when dogs fit the livestock designation.

“Under the facts of this case, the court finds that the dogs being used on the easement property for breeding, hunting and boarding are dogs being used for work and/or profit and can be considered livestock under the plain meaning of the term livestock,” Lodge wrote.

Later, he spelled out circumstances when dogs don’t meet the livestock definition.

“A family dog that does not work on the farm, is not bred, or is not used to help produce food when a person hunts, is just a family pet and is not livestock,” he wrote.

The Parks bought the property, seven miles upriver from Kooskia, in 1989. They put in the kennel and began breeding champion German shorthair hunting dogs, and they also operate a nonprofit German shorthair rescue operation.
In 1998, Forest Service officials notified the Parks that the kennel violated terms of the easement because it was an unauthorized commercial use.
“We’re elated and glad that somebody finally took the time to read the dictionary,” Ron Park told The Lewiston Tribune. “My business has been greatly damaged through all this. I’ve lost many, many clients because a lot of people think I was doing something that was not proper.”

Elayne Murphy, a spokeswoman for the Clearwater National Forest, says the ruling is a mixed bag. While the agency lost on the livestock issue, she said the judge upheld easement rules and reprimanded the Parks’ for violating the terms of the easement by expanding the barn and kennel operations without permission from forest officials.

She also said it’s too early to determine if the agency will modify its easement language in response to the conclusion that dogs in certain cases can be classified as livestock.

“We’ve learned from this and are moving forward,” Murphy told The Associated Press Tuesday. “We’re still in the process of absorbing the decision and what it means for us.”

________________________________________

658 F.Supp.2d 1236 (2009)

UNITED STATES of America, Plaintiff,
v.
Ron and Mary PARK, husband and wife, Defendants.

Civil No. 05-0213-N-EJL.United States District Court, D. Idaho.

September 11, 2009.D. Do Dogs Fit Under the Plain Meaning of the Term “Livestock”

Having found state statutes unhelpful, the Court will turn to the plain meaning of the word “livestock.” As the Ninth Circuit noted, “[t]he term “livestock” stems from the Middle Ages, when it was used as a measure of wealth or to refer to property that could be moved, particularly to a market for trade. . . . Later, the term began to be used in a more limited sense to describe cattle. . . . Today, dictionary definition of “livestock” is sweeping, capturing every type of domesticated animal.” United States v. Park, 536 F.3d 1058, 1062 (9th Cir.2008) (citations omitted).

Webster’s Dictionary defines “livestock” as “animals kept or raised for use or pleasure; esp: farm animals kept for use and profit.” Merriam-Webster Collegiate Dictionary 728 (11th ed. 2003). Black’s Law Dictionary defines “livestock” as “domestic animals and fowls that (1) are kept for profit or pleasure, (2) can normally be confined within boundaries without seriously impairing their utility, and (3) do not normally intrude on others’ land in such a way as to harm the land or growing crops.”Black’s Law Dictionary 953 (8th ed. 2004).

In trying to determine the intent of the parties entering the easement in 1973, the Court also examined earlier published definitions of “livestock.” In Ballentine’s Law Dictionary 746 (3rd ed. 1969), the term “livestock” is defined as:

Domestic animals, particularly cattle, hogs, sheep and horses. Livestock includes fur bearing animals domesticated, and raised in captivity. The breeding, raising and pelting of foxes is agricultural labor as that term is used in the Social Security Act. Fromm Bros. v. United States (DC Wis) 35 F.Supp. 145.

Black’s Law Dictionary 1083 (4th ed. 1968) defines “live stock” as:

Domestic animals used or raised on a farm. Boland v. Cecil, 65 Cal.App.2d Supp. 832, 150 P.2d 819, 822 [(1944)]. The term in its generic sense includes all domestic animals. Meader v. Unemployment Compensation Division of Industrial Accident Board, 64 Idaho 716, 136 P.2d 984, 987 [1943]. It includes fur bearing animals raised in captivity.Fromm Bros. v. United States, D.C. Wis., 35 F.Supp. 145, 147 [(1940)].

1245*1245 In Meader, the Idaho Supreme Court held that for purposes of the state Unemployment Compensation Law, the definition of “livestock” was limited to the livestock listed in the statute and not the broader generic definition of livestock which would include “the propagation and rearing of all domestic animals, which, it may be conceded here, includes domestic trout.” 64 Idaho at 722, 136 P.2d 984. This generic definition of livestock in 1948 is relevant to the issue before this Court, even though the holding in Meader was that domestic trout were not livestock under a particular Idaho Unemployment Compensation statute. Arguably, Meader supports a broad definition of the term “livestock” where such term is not otherwise limited by another statute. This broad definition is consistent with the expert testimony that the term “livestock” is an evolving term.

In applying these definitions, the Court finds that dogs can be considered livestock in the generic sense of the word. Dogs are domestic animals. Certainly, the kenneling or breeding of dogs could be considered the keeping of farm animals kept for profit. It is undisputed that dogs can be kept for profit or pleasure—working dogs versus pure family pets. Dogs can normally be confined in kennels without impairing their utility and that dogs in kennels would not be able to intrude on the land of others. Further, the USDA’s definitions for agricultural activity which livestock farming would be in 1973 included other animal production which included dog breeding and kenneling as agricultural activities. Finally, the court in Levine v. Conner, 540 F.Supp.2d. 1113, 1116 (N.D.Cal.2008) held “the scope of domestic animals used or raised on a farm can potentially extend to guinea pigs, cats, dogs, fish, ants and bees.”[2]

The experts agree that working dogs can be part of the livestock farming process. While “livestock” may be an evolving term, dogs probably played a bigger part on ranching operations when the easement was signed that they do now because of downsizing and increased mechanization on ranches and farms. Owning, kenneling and breeding hunting dogs is common in the District of Idaho. Hunting dogs are often bred for profit and can even be used on hunting farms. As the Forest Service’sexpert testified, dog sales do occur at livestock sales although not frequently. Many people now (and when the easement was entered) raise dogs for profit for dog shows, specialized breeding, working dogs and hunting dogs. For these reasons, the Court finds that under a plain meaning of the term “livestock” as such was defined at the time the easement was granted, dogs can be considered livestock under the facts of this case since the dogs involved are not merely family pets, the dogs are bred for profit occasionally and are hunting dogs which is a form of working dogs allowed under the broad definition. Finally, kenneling dogs for profit is similar to renting property for pasturing horses and is a type of livestock farming.

The Court also finds the expert testimony generally supports the plain meaning of the word “livestock” applied by the Court. 1246*1246 Both Dr. Rosenthal and Dr. Fox agreed that “livestock” included animals used in the agricultural economy for food, fiber or work. Dr. Fox testified that “livestock improves the use of land” and the breeding and kenneling of dogs improves the use of the agricultural land in the case at bar.

 E. Do the Rules of Contract Interpretation Support a Broad Definition of “Livestock?”

Having found that dogs can be livestock in certain situations, the Court must determine if this broad, plain meaning definition is consistent with the rules of construction for an ambiguous term in a contract. The rules of construing contracts also supports the Court’s conclusion that a broad, inclusive definition of livestock should be applied in this case. Any ambiguity that remains after trying to determine the intent of the parties from the extrinsic evidence should be interpreted against the drafter of the contract. Farnsworth v. Dairymen’s Creamery Ass’n, 125 Idaho 866, 876 P.2d 148, 152 (Ct.App.1994) (citing 3 CORBIN ON CONTRACTS § 559 (1960)). This is because ambiguous language in a contract is ordinarily construed liberally and most strongly in favor of the party who did not write or prepare the contract and who therefore is not responsible for the ambiguity. Stated another way, when there are two possible and reasonable meanings which could be adopted, the court should adopt the one which is the least favorable in its legal effect to the party who chose the words. Id.

In this case the Court received no evidence regarding the sophistication or lack of sophistication of the Monroes regarding land use easements. There was testimony that Mr. Curnes had received specialized training in real estate issues for the ForestService and that he negotiated over 100 of these easements over the 10 to 12 year period. Additionally, Mr. Curnes had the benefit of general counsel for the ForestService reviewing the easements before they were executed. As to the Monroes, it was testified to that the Monroes did not retain legal counsel when negotiating the easement for their property and did not make changes to the proposed language of the Forest Service. The Monroes simply signed the easement proposed by the United States. Hence, the negotiations were arguably not between two equally situated parties and the ambiguous term should be interpreted in favor the non-drafting party.

 F. Conclusion

It is clear from the evidence, that neither party to the scenic easement expressed an intent as to whether dogs should be considered “livestock.” The Court concludes that dogs are livestock or pets depending on their purpose and/or usage. Like the example of the bison being considered at times livestock and at times zoo animals, the Court finds dogs are at times livestock when they are used for work on a farm such as herding animals, or used for profit when dogs are bred for sale or used for hunting. A dog could be considered livestock when it is being kenneled for profit just like pasturing horses for profit. While it is true that dog kenneling can be also commercial activity, it is a type of commercial activity allowed under the broad reservation for “general crop and livestock farming.”

Of course a dog can also be on real property without being livestock. A family dog that does not work on the farm, is not bred, or is not used to help produce food when a person hunts, is just a family pet and is not livestock. Under the facts of this case, the Court finds that the dogs being used on the easement property for breeding, hunting and boarding are dogs 1247*1247 being used for work and/or profit and can be considered “livestock” under the plain meaning of the term livestock. Moreover, this conclusion is consistent with the rules of contract construction when the term is ambiguous and the Court cannot determine the parties’ intent.

In interpreting the easement to include a broad definition of the term “livestock” which would include working dogs and dog kenneling, the Court also finds that the purpose of the scenic easements is not negatively impacted by this interpretation. The kennels on this property are out of eyesight from the road and do not distract from the natural beauty of the protected river corridor. The Forest Service maintains its right to control the building of structures on the easement areas and this control will prevent abuses of the purpose of the scenic easements. The Court is mindful that the Forest Service’s intended to limit the commercial activities (outside the residence) on the residential properties to maintain a scenic corridor, however theForest Service specifically granted the residential property owners the right to conduct certain commercial activities that fall under the clause “general crop and livestock farming” in the scenic corridor. While it is unfortunate that the term “general crop and livestock farming” was not specifically defined and limited in the easements, the Court must enforce the easement as written.

Please note these footnotes to the case:

[1] There was testimony that the Parks are also boarding cats on their property. Cat boarding was not discussed as being an issue for the Court to decide when the matter was remanded by the Ninth Circuit. Further, it was unclear from the testimony if the cats are boarded in the residence or outside the main residence. The easement allows for commercial activity within the residence (such as a bed and breakfast) subject to the approval of the Forest Service. While it does not appear from the correspondence submitted as exhibits that the Parks sought approval from the Forest Service for cat boarding, the Court declines to expand the legal issues on remand. Accordingly, the Court will only determine whether dogs are considered livestock under the scenic easement.

[2] The Court notes it did find one case from Tennessee in 1926 which the court held “livestock” means domestic animals used or raised on a farm, especially cattle, sheep and hogs and does not include dogs. Howard & Herrin v. Nashville, C. & St. Ry. Co., 153 Tenn. 649, 284 S.W. 894 (1926)(hunting dog owner brought suit for hunting dog which was killed by railcar and court determined dogs were not included in the definition of “livestock” under a particular railroad statute.) The Court finds this Tennessee case distinguishable from the case at bar. The Court also found several cases where dogs attacking other livestock such as cattle are not considered livestock, but the facts of those cases are also distinguishable from the case at bar.

_________________________________________

The entire case decision by the court: http://scholar.google.com/scholar_case?case=14005924142794960743&q=Ron+and+Mary+Park+v+US+forest+service&hl=en&as_sdt=3,44&as_ylo=2009

Disclaimer connected to this blog…Things said are of my opinion and the opinion of others…Stay tuned  Best -B

Advertisements

~ by topcatsroar on May 15, 2013.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

 
%d bloggers like this: